986 F.

2d 1407

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished

opinions may be cited only in related cases.
Gilbert T. GONSALVES, Plaintiff, Appellant,
v.
INTERNAL REVENUE SERVICE, et al, Defendants,
Appellees.
No. 92-1723.

United States Court of Appeals,

First Circuit.
February 26, 1993

Appeal from the United States District Court for the District of Maine
Gilbert T. Gonsalves on brief pro se.
James A. Bruton, Acting Assistant Attorney General, Gary R. Allen,
Richard Farber, Curtis C. Pett, Attorneys Tax Division, Department of
Justice, and Richard S. Cohen, United States Attorney, on brief for
appellees.
D.Me.
AFFIRMED.
Before Breyer, Chief Judge, Torruella and Cyr, Circuit Judges.
Per Curiam.

Between 1979 and 1985 the appellant, Gilbert Gonsalves, worked in the
Panama Canal Zone for the Panama Canal Commission. He believed that the
Panama Canal Treaty gave an exemption from United States income taxes to
American employees of the Commission. In 1986, the United States Supreme
Court decided that the treaty had not created such an exemption. O'Connor v.
United States, 479 U.S. 27 (1986).

By the time the Supreme Court answered the underlying question, however,
Mr. Gonsalves and the IRS were locked in a quarrel over the extent of Mr.
Gonsalves' tax liability. The IRS had received some tax payments, but said that
Mr. Gonsalves still owed money to the government; Mr. Gonsalves said that he
had overpaid. The IRS made at least one assessment, for tax year 1981, and in
March 1988 it collected some of the amount assessed by levying upon a bank
account that belonged to Mr. Gonsalves. See generally Gonsalves v. Internal
Revenue Service, 975 F.2d 13, 14 (1st Cir. 1992) (per curiam).

Although the remedies were available to him, Mr. Gonsalves neither challenged
the IRS' calculation of a tax deficiency by filing a petition for redetermination
in the Tax Court, nor attempted to recover the taxes paid by filing a refund
action in the district court. See 26 U.S.C. 6213, 7422. He has, however,
twice sought to recover damages for transgressions that he says IRS officials
committed during the course of their dealings with him. Mr. Gonsalves claims
that IRS officials violated his rights in three ways: (1) by denying him an
administrative appeal despite his "many verbal and written requests;" (2) by
seizing the funds in his bank account without giving him proper notice of their
intention to levy; and (3) by failing to respond to his inquiries and settle his
differences with the agency in a "prompt and timely" manner.

Mr. Gonsalves first attempted to recover damages in a suit he filed in 1991 in

the United States District Court for the District of Maine. The 1991 complaint
named the Internal Revenue Service as the only defendant, and asserted claims
under both the United States Constitution and the "Taxpayer Bill of Rights." 26
U.S.C. 7433. The district court gave judgment to the IRS, and we affirmed.
975 F.2d at 15-17.

In January 1992 Mr. Gonsalves filed the complaint before us now. Although
this complaint again names the IRS as a defendant, it also names, and its true
targets appear to be, the district directors of the IRS offices in Andover,
Massachusetts, Augusta, Maine, and Philadelphia, Pennsylvania (who are
identified only by title), and Paul Chinouard, a "problem resolution officer" at
the IRS office in Portland, Maine.

The allegations in the 1992 complaint echo those made in the 1991 complaint.
However, Mr. Gonsalves now contends that he is entitled to recover directly
from the IRS officials who violated his rights, pursuant to the doctrine first
described in Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). The district court ruled that the defendants
were entitled, at the very least, to "qualified immunity," and dismissed the

complaint. This appeal followed. We affirm.

7

* "Bivens actions lie only for violations of rights secured by the Constitution."
Bothke v. Fluor Engineers & Constructors, Inc., 834 F.2d 804, 814 (9th Cir.
1987) (Beezer, J., concurring). Mr. Gonsalves claims that the defendants
violated the Due Process Clause of the Fifth Amendment, which says that the
federal government cannot deprive a person of life, liberty, or property "without
due process of law." The amended complaint did allege a deprivation of
property-the seizure of money in Mr. Gonsalves' bank account-but the record
contains no factual basis from which one could infer that this deprivation
occurred without due process of law.

When the government takes a person's property, due process requires that it
give him notice and an opportunity to be heard "at a meaningful time and in a
meaningful manner." Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (quoting
Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Generally, "at a meaningful
time" means "notice and a hearing before persons are separated from their
property," Rodriguez v. United States, 629 F.Supp. 333, 347 (N.D.Ill. 1986)
(emphasis added), although in some circumstances-for example, when the IRS
perceives that its ability to collect taxes will be jeopardized by delay-a postdeprivation hearing may adequately protect due process rights. See Phillips v.
Commissioner, 283 U.S. 589, 595-97 (1931); Rodriguez v. United States, 629
F.Supp. at 348.

Except where the IRS makes such a "jeopardy" assessment, the Internal
Revenue Code requires that it give a taxpayer notice before it takes his
property, and provide the taxpayer with a choice whether to be heard before or
after the deprivation. The procedure is as follows: once the IRS determines that
a taxpayer owes money to the government, it must issue a notice of the
deficiency, then wait 90 days before attempting to collect the taxes due. 26
U.S.C. 6213(a). If the taxpayer wants a pre-deprivation hearing, he can,
during those 90 days, file a petition with the Tax Court asking it to redetermine
the deficiency, and the stay against collection efforts will remain in effect while
the petition is pending. Id. Or the taxpayer can forego a Tax Court hearing, pay
the tax, and seek a refund in a post-deprivation action in the district court. 26
U.S.C. 7422.

10

The taxpayer may receive, and may even be entitled by statute or regulation to
receive, extra process, such as an administrative appeal, a notice of levy, and
prompt responses to his inquiries. But, because his "due process rights are
adequately protected by the statutory scheme which allows him to contest his
tax liability in the Tax Court prior to paying the disputed tax or to sue for a

refund in federal district court ...," Stonecipher v. Bray, 653 F.2d 398, 403 (9th
Cir. 1981) (citing Phillips v. Commissioner, 283 U.S. at 595), these additional
procedures are not constitutionally required. For example, once the taxpayer has
either resorted to or waived a Tax Court hearing, the IRS can, as it did here,
make a formal assessment and then levy upon the taxpayer's property to satisfy
the deficiency. See 26 U.S.C. 6203, 6331. However, before it can perform
the levy, 26 U.S.C. 6331(d) requires the IRS to issue notice of its intention to
levy, and to deliver the notice to the taxpayer personally, or to mail it to his last
known address.
11

In this case, the district court that tried the claims in the 1991 complaint found
that the IRS had mailed the notice to the wrong address. 975 F.2d at 15. The
ensuing levy therefore may have violated the statute. But, the mistake did not
deprive Mr. Gonsalves of an opportunity to file a petition in the Tax Court (an
opportunity he had already waived by the time of the levy), or to institute a
refund action in the district court (an opportunity that remained available to him
after the levy). It therefore did not deny him due process of law. See Baddour,
Inc. v. United States, 802 F.2d 801, 807 (5th Cir. 1986); Zernial v. United
States, 714 F.2d 431, 435 (5th Cir. 1983); Rodriguez v. United States, 629
F.Supp. at 347 (wrongful levy does not in itself deny due process).

12

For the same reason, there is no constitutional substance to Mr. Gonsalves'

claims that the defendants (1) refused to provide him with an administrative
appeal, and (2) ignored his inquiries and otherwise delayed the resolution of his
differences with the agency. Mr. Gonsalves may have had a "right," created by
the IRS' Statement of Procedural Rules, to an informal administrative appeal.
See 26 C.F.R. 601.106. But because the statutory mechanisms for challenging
agency actions in the courts offer due process to taxpayers who face
deprivations of property by the IRS, the appeals procedure is not
constitutionally necessary. See Rosenberg v. Commissioner, 450 F.2d 529, 533
(10th Cir. 1971) (provisions in Statement of Procedural Rules "not designed to
protect the constitutional rights of the taxpayer"). See also United States v.
Horne, 714 F.2d 206, 207 (1st Cir. 1983). The violation of a regulation which
the Constitution does not require an agency to adopt does "not raise
constitutional questions." United States v. Caceres, 440 U.S. 741, 752 (1979).

13

Similarly, Mr. Gonsalves may have been entitled to responses to his inquiries
and cooperation with his efforts to resolve his tax problems-although he has not
identified the statute or regulation that confers such a right. But again,
notwithstanding the defendants' alleged inattention and uncooperativeness,
constitutionally-adequate process remained available, in the form of a Tax
Court petition or a refund action, to ensure that the government kept no more

than its legal share of Mr. Gonsalves' income. The underlying property interest
did not go unprotected.
14

The defendants' alleged misbehavior, it is true, may have deprived Mr.

Gonsalves of the IRS' assistance in vindicating that interest. However, such
assistance is itself neither a "liberty" nor a "property" interest whose
deprivation is capable of redress through a Bivens action. See Francis-Sobel v.
University of Maine, 597 F.2d 15, 18 (1st Cir. 1979). "In order to state a legally
cognizable constitutional claim, [Mr. Gonsalves needed to] allege more than
the deprivation of the expectation that the agency [would] carry out its duties."
Council of and for the Blind v. Regan, 709 F.2d 1521, 1533-34 (D.C.Cir. 1983)
(en banc) (emphasis in original). See also Cameron v. Internal Revenue
Service, 773 F.2d 126, 128-29 (7th Cir. 1985) (allegations that IRS agents
subjected taxpayer to unnecessary inconvenience and failed to explore
possibilities of settlement did not describe denial of due process); American
Association of Commodity Traders v. Department of Treasury, 598 F.2d 1233,
1236 n.2 (1st Cir. 1979) ("not clear that every loss of potential help from a
bureaucrat is a loss of a constitutional interest").

II
15

In his reply brief, Mr. Gonsalves cites Rutherford v. United States, 702 F.2d
580 (5th Cir. 1983). Rutherford suggested that a taxpayer may have, in addition
to a "property" interest in his tax dollars, a substantive "liberty" interest in
freedom from abuse and harassment by IRS officials. See also Bothke v. Fluor
Engineers & Constructors, Inc., 834 F.2d 804, 811 (9th Cir. 1987).

16

However, the existence of such a liberty interest is, at present, more a matter of
conjecture than of settled interpretation of the Due Process Clause. The Fifth
Circuit has made it clear that its decision in Rutherford "did not hold that the
alleged conduct violated a protected 'liberty' interest." Morales v. Haynes, 890
F.2d 708, 710 (5th Cir. 1989). Rather, the Rutherford panel, cautioning that "
[i]mplication of nontextual substantive rights from the general monitions of the
due process clause is a matter not to be undertaken lightly," only remanded to
the district court with instructions to determine whether "the due process clause
actually does create in taxpayers a liberty interest in freedom from abusive
behavior [by IRS officials]." Rutherford, 702 F.2d at 584. And, other courts
have said that the infliction of emotional injury by government officials is a tort
without constitutional dimensions. See, e.g., Conner v. Sticher, 801 F.2d 1266,
1269 (11th Cir. 1986); Vasquez v. City of Hamtramck, 757 F.2d 771, 773 (6th
Cir. 1985) ("A citizen does not suffer a constitutional deprivation every time he
is subjected to the petty harassment of a state agent"); Buikema v. Hayes, 562

F.Supp. 910, 911 (N.D.Ill. 1983); Taylor v. Nichols, 409 F.Supp. 927, 936
(D.Kan. 1976); Dear v. Rathje, 391 F.Supp. 1, 9 (N.D.Ill. 1975). See also Paul
v. Davis, 424 U.S. 693, 710 (1976) (interest in reputation neither liberty nor
property guaranteed against state deprivation without due process); Gumz v.
Morissette, 772 F.2d 1395, 1408 (7th Cir. 1985) (Easterbrook, J., concurring)
(interest in freedom from gratuitous fright or shock not a liberty interest).
17

We need not decide here whether the Due Process Clause guarantees freedom
from abuse by IRS agents. Defendants to Bivens actions enjoy the same
"qualified immunity" that state officials have in the context of civil rights
actions brought under 42 U.S.C. 1983. Butz v. Economou, 438 U.S. 478, 504
(1978). This means that they "generally are shielded from liability for civil
damages insofar as their conduct does not violate clearly established ...
constitutional rights of which a reasonable person would have known." Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). "The contours of the right must be
sufficiently clear that a reasonable official would understand that what he is
doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987).

18

In the absence of any cases expressly recognizing a liberty interest in freedom

from harassment by government officials, we must conclude that the right has
not been "clearly established." Consequently, to the extent that the complaint
even raised an issue of substantive due process, we agree with the district court
that the defendants were entitled to dismissal on grounds of qualified
immunity.1

19

The judgment of the district court is affirmed.

The complaint in Rutherford "sketche[d] a portrait of a lawless and arbitrary

vendetta fueled by the power of the state, designed to harass by unwarranted
intrusion into the minutia of [the plaintiffs'] financial affairs, and intended to
abuse by the creation of palpably unfounded claims against their property...."
702 F.2d at 584. Mr. Gonsalves, on the other hand, made no specific factual
allegations of abuse, but merely stated as conclusions that the IRS had used
"harassment and delays," and "threats without basis or legitimate foundation" in
its dealings with him. Even a pro se plaintiff must plead some specific facts in
support of his claims of civil rights violations. Hurney v. Carver, 602 F.2d 993,
995 (1st Cir. 1979). We would, therefore, affirm the dismissal even if the
constitutional right asserted were so "clearly established" as to preclude
granting qualified immunity